WAILUKU — Two people testifying Wednesday in a sand mining lawsuit recalled seeing earthmoving work in a Maui Lani development in February without a required archaeological monitor.

Trinette Furtado and Cody Nemet said they were part of a group that went to the Maui Lani Phase IX site Feb. 22. Both said that they saw only one person, who was operating a bulldozer, and sand being moved from a large dune.

The testimony backs the claims of plaintiffs Malama Kakanilua, Clare H. Apana and Kaniloa Kamaunu, who on July 24 filed a lawsuit in 2nd Circuit Court to halt earthmoving activities by Maui Lani Partners at the site until the company complies with its archaeological monitoring plan. The plaintiffs also are concerned that burials have been disturbed and desecrated and that further earthmoving will cause more harm.

Maui Lani Partners officials have said that all earthmoving activities were overseen by an archaeological monitor in compliance with the state-approved monitoring plan.

Judge Joseph Cardoza on Wednesday presided over an evidentiary hearing on a motion for a preliminary injunction against Maui Lani Partners to halt earthmoving work at the site as the lawsuit continues to be adjudicated.

Grading and sand mining at a phase of the Maui Lani development, as seen from Wailuku Heights on Wednesday, are the subjects of a lawsuit in 2nd Circuit Court. The Maui News / MATTHEW THAYER photo

The hearing will continue at 10 a.m. Monday.

An initial 10-day stay on sand mining and excavation imposed by Cardoza expired Aug. 12. On Wednesday, plaintiffs and Maui Lani Partners agreed that a hearing would be held if work was required by county or state order, plaintiffs’ attorney Lance Collins said outside of court.

In her testimony, Furtado said that she saw a large conveyer belt, a bulldozer and a port-a-potty on the site. She said that she observed a bulldozer operating and “moving earth.”

Collins asked if the sand being moved could have been from a dune or a human-made pile.

“It will take a lot of humans to make that large dune,” Furtado said.

Nemet reported seeing heavy equipment taking sand from a dune and putting it on a platform.

“The platform seemed to be sifting the sand,” he said.

Nemet took video of the bulldozer placing sand on the platform but did not have video of the equipment taking sand from the dune.

Maui Lani attorney Gregory Kugle asked Furtado and Nemet if they saw no trespassing signs on the Maui Lani property. Both replied that they did not see any signs.

Kugle also questioned why Furtado and Nemet did not report what they saw to authorities. Furtado said that she did call the county Public Works Department about a grading permit related to the work; county officials said they would look into it. Nemet said he shared his video with the state Historic Preservation Division, though months later.

In his cross examination of Nemet, Kugle asked him about a pickup truck he saw on-site while the bulldozer was operating. Nemet said he assumed the truck belonged to the bulldozer operator but was not sure.

Also testifying was Kahului resident Amy Halas, who videotaped a convoy of haulers April 29 going in and out of an access road to Phase IX along Maui Lani Parkway. Video she took from the Church of Jesus Christ of Latter-Day Saints parking lot across the access way was shown in court.

Halas said that she saw “an endless convoy of trucks that day” hauling out sand.

Kugle asked Halas how she knew where the sand was coming from, noting two developments use the access road. Halas explained that access to Phase IX is paved and that the other access to a development by a different company is not paved and not wide enough for large haulers.

Maui Lani Partners and contractor HC&D received warning notices May 1 to correct violations after the county discovered that the grading permit was not sufficient for sand mining. The excavation and exportation of high-quality sand for concrete and other uses meet the definition of resource extraction, which requires other permits.

Witnesses said that the county has not revoked the grading permit.

* Melissa Tanji can be reached at mtanji@mauinews.com.

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